Haller v. Walczak
| Decision Date | 06 December 1956 |
| Docket Number | No. 19,19 |
| Citation | 79 N.W.2d 622,347 Mich. 292 |
| Parties | Sophie HALLER, Plaintiff and Appellee, v. Walter WALCZAK and Helen Walczak, jointly and severally, Defendants and Appellants. |
| Court | Michigan Supreme Court |
Roman V. Ceglowski, Hamtramck, for defendants-appellants.
George A. Porter, Detroit, for plaintiff-appellee.
Before the Entire Bench except BOYLES, J.
Plaintiff brought this action to recover damages for injuries claimed to have been sustained by her as a result of a fall on porch steps. The declaration filed alleged that on January 29, 1954, plaintiff was a tenant of defendants, occupying an upper flat in a dwelling owned by them. The building had an enclosed rear porch, elevated about four feet from the ground, to which access was supplied by means of said steps. Plaintiff further averred in her pleading that it was the duty of the defendants to keep said porch steps in good repair, free from ice, and reasonably safe for use by plaintiff as a tenant in the building. It was further her claim that the duty was not performed, and that as a result plaintiff sustained a fall resulting in injuries to her person.
The case was started by summons issued on July 8, 1954. It is not disputed that service was had on both of the defendants on July 12th following. The return showing service was duly made, and plaintiff's declaration was filed on the 14th of the same month. No appearance was entered on behalf of defendants, and their default was taken on August 20, 1954. Motion for a default judgment was made on the 4th of March, 1955, and, following a hearing in which proofs were submitted as to the damages sustained by plaintiff, the circuit judge, hearing the matter without a jury, entered judgment in the sum of $6,000, with costs. Notice of entry of judgment was duly served on defendants.
Following the entry of judgment an execution was issued and garnishment proceedings were also instituted. On April 20, 1955, defendants submitted a motion to set aside the default and the judgment entered against them, asserting that the judgment was irregularly granted, that they had a meritorious defense to the action, that the injuries suffered by plaintiff resulted from her own carelessness, that defendants were not guilty of negligence, and that defendant Helen Walczak was entitled to deny liability on the ground of coverture. An affidavit of merits was filed in support of the motion and subsequently defendants caused an answer to be filed in the case denying the material averments of the declaration. The trial court denied defendants' motion to set aside the default and the judgment entered thereon. Subsequent motions for reconsideration were also denied. As indicated by the orders entered, it was the position of the trial judge that he was without authority to grant defendants the relief sought.
Following the denial of the last motion made on behalf of defendants, claim of appeal was filed and the record duly settled. Defendants assert in their reasons and grounds for appeal that the trial court was in error in entering the orders above referred to, that the default judgment was irregularly taken without compliance with Wayne circuit court rule 24, part 1, that defendant Helen Walczak was entitled to defend the action on the ground of coverture, that the judgment was excessive, and that the proofs taken did not establish plaintiff's right to recover. It is the position of the plaintiff that the motions made following the entry of judgment were properly denied, and that defendants were not entitled to the relief sought by them.
The circuit court rule cited, in force at the time the default judgment was entered, provided that before entry of any judgment or decree in actions and proceedings in which a defendant had not appeared an affidavit of non-military service should be filed, such affidavit to be executed not more than three days before entry of such judgment or decree. It is conceded that plaintiff did not, prior to taking the default judgment against defendants, file an affidavit setting forth that defendant were not in military service. The pertinent part of the local rule makes reference to C.L.1948, § 32.53, Stat.Ann. § 4.644, and to the Soldiers' and Sailors' Civil Relief Act of 1940, duly enacted by Congress and effective as of October 17, 1940. However, the Michigan statute cited does not refer in specific terms to a non-military affidavit. The Federal law in question, the 'Soldiers' and Sailors' Civil Relief Act of 1940' 1, provides, 50 U.S.C.A. Appendix, § 540(1), for the filing of an affidavit in default cases as to the military service of the defendant. However, if such affidavit is not filed judgment may be entered by order of the court, and the court is also authorized to require the filing of a bond to indemnify the defendant, if in military service, against loss or damage that may be suffered by him if the default judgment is subsequently set aside in whole or in part. Authority is granted to the court entering the judgment to make such further order as may be deemed necessary to protect the rights of a defendant under the act.
The provisions of the Federal statute were obviously designed to protect those in military service. It does not appear that in the enactment of the measure Congress sought to protect others. In the case at bar no claim was made in the trial court, or in this Court, that either defendant was in military service when the suit was brought, or when the judgment was entered. An affidavit filed by plaintiff in the proceeding specifically set forth that the defendants were not in military service, but were residents of the city of Hamtramck and regularly employed. Such being the situation, it does not appear that defendants were in any way prejudiced because of the failure to file the nonmilitary affidavit before taking the default judgment. Counsel for plaintiff directs attention in this connections to C.L.1948, § 616.5, Stat.Ann. § 27.842, which, among other provisions, declares that a default judgment shall not be reversed:
'For any other default or negligence of any clerk or officer of the court, or of the parties, or their counselors or attorneys, by which neither party shall have been prejudiced.' (Subsection 13.)
Such provision is applicable in the case at bar under the facts disclosed by the record.
In considering the bearing of the Federal statute on the issue here involved, it must be borne in mind that the purpose of the Congress in its enactment was to protect those in military service. The title clearly suggests the object to be attained. In construing the section of the act above cited, 50 U.S.C.A. Appendix, § 520, it has been generally recognized that one not in military service is not entitled to invoke its protection. In Howie Mining Co. v. McGary, D.C., 256 F. 38, 44, the defendants, as in the case at bar, were duly served with process. They consulted an attorney who wrote to the clerk of the court in which the action was brought requesting a certified copy of the declaration as soon as filed. Apparently the request was not received. Because the attorney did not receive a reply to his communication, he assumed that no declaration was filed and that presumably the suit had been dismissed. No appearance was filed and in consequence a default judgment was entered. Motion to set said judgment aside was made, based in part on the fact that no non-military affidavit had been filed. It was contended that such failure rendered the judgment void. Following a discussion of the provisions of the statute there involved, it was said:
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Epps v. 4 Quarters Restoration LLC., Docket No. 147727.
...time, a default is merely an admission of liability and not an admission regarding the proper amount of damages. Haller v. Walczak, 347 Mich. 292, 300, 79 N.W.2d 622 (1956) ("In ordinary actions founded on contract or tort the rule seems well established that a default in appearing or plead......
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Penney v. Protective Nat. Ins. Co. of Omaha
...the Supreme Court has been reluctant to set aside the judgment absent a showing of prejudice because of the defect. Haller v. Walczak (1956), 347 Mich. 292, 79 N.W.2d 622. In recent cases, we have required that plaintiffs must comply with the seven-day notice provision of GCR 1963, 520.2(2)......
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Meyer v. Walker Land Reclamation, Inc.
...herein, we begin with the recognition that a default admits the right to recover but not the amount of damages. Haller v. Walczak, 347 Mich. 292, 300, 79 N.W.2d 622 (1956). Thus, the court must still assess damages and, ideally, such assessment should award the successful party only what is......
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Wood v. Detroit Auto. Inter-Insurance Exchange
...has a right to participate if further proceedings are necessary to determine the amount of damages. See, for example, Haller v. Walczak, 347 Mich. 292, 79 N.W.2d 622 (1956); Hanover Fire Ins. Co. of New York v. Furkas, 267 Mich. 14, 255 N.W. 381 (1934); and Grinnell v. Bebb, 126 Mich. 157, ......